Courage to Dissent by Brown-Nagin Tomiko

Author:Brown-Nagin, Tomiko
Language: eng
Format: epub
Publisher: Oxford University Press, USA
Published: 2011-08-14T16:00:00+00:00

Law

The court battle remained, and it promised to be an uphill one. The lawsuit that Moore filed to enjoin the legislature from excluding Bond was far from an open-and-shut case. Bond v. Floyd raised novel and thorny constitutional issues. Moore asked the federal court to void a state legislature’s decision regarding a most crucial matter: the qualifications and conduct of one of its own members. Federal courts often regarded such matters as outside their jurisdiction. Race made the political thicket even more treacherous. Nothing guaranteed that the judges—far removed from the world of the 136th District—would see the issues in the case as SNCC, Bond, and his constituents saw them. The state of Georgia, supremely confident that it was within its rights to find Bond unqualified for office, intended to make states’ rights and separation of powers—not individual rights or abstract notions of equality and democracy—the dominant narrative frame of the litigation.118

Moore, assisted by cocounsel Charles Morgan, Jr., pushed back against the state sovereignty claim with a battery of constitutional arguments. First, they relied on Baker v. Carr to persuade the court of its authority to review Bond’s challenge to the legislature’s decision. Baker made clear that federal courts could resolve federal constitutional questions, even in an area that a state traditionally considered its exclusive prerogative.119

Next, the lawyers made a contention plain to everyone in SNCC and many outside of it. “Bond was a typical example of Southern justice,” Moore argued, and his case was an illustration of selective law enforcement. Bond had been punished for expressing dissent when no white man would have been under similar circumstances. “In almost 100 years, only a Negro who is a pacifist, employed by a militant interracial civil rights organization, was directed to stand aside and humiliated in the presence of family, friends, and constituents,” the lawyers argued. The hypocrisy of the situation was apparent. White men who had “railed against the laws and policies of the United States government” from the floor of the General Assembly had expelled Bond from office. Many of the Georgia house members who had voted to unseat Julian Bond for “treasonous” conduct had supported a drive to nullify the Supreme Court’s 1954 decision in Brown v. Board of Education and to impeach justices who supported the civil rights landmark. The conclusion was “inescapable,” Moore argued: the same rationales—racial prejudice and the desire to punish those who subverted the racial order—animated both movements.120

The Georgia house had also infringed the rights of Bond’s constituents, Moore claimed. The legislature had “taken from the people of the 136th District the ultimate power to determine who shall represent them.” The citizens had been without representation in the General Assembly since early 1966, a denial of equal protection and a republican form of government.121

Moore coupled his racial critique of the legislature’s action with a First Amendment argument. The attorney contended that the oath of office, including the phrases to “support the Constitution” and “conduct myself, as will, in my judgment, be most conducive to the interests and prosperity of this State,” should be void for vagueness.

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